Citation Nr: 0821357
Decision Date: 06/30/08 Archive Date: 07/02/08
DOCKET NO. 06-30 076 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to an evaluation in excess of 40 percent for the
service-connected residual disc excision and laminectomy L5-
S1, left.
REPRESENTATION
Appellant represented by: Pennsylvania Department of
Military and Veterans Affairs
ATTORNEY FOR THE BOARD
G. Jackson, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1956 to August
1960.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2005 rating decision issued by
the RO.
The veteran also expressed initial disagreement with the
noted rating decision with regards to the assigned rating for
the service-connected hammertoe. The RO addressed this
matter in the July 2006 Statement of the Case (SOC).
However, in his September 2006 Substantive Appeal, the
veteran indicated that he only wished to pursue the appeal
concerning the issue of an increased rating for the service-
connected back disability. Accordingly, the issue of an
increased rating for the service-connected hammertoe is no
longer before the Board on appeal.
FINDING OF FACT
The service-connected residual disc excision and laminectomy
L5-S1, left is not shown to have been manifested by
unfavorable ankylosis of the entire thoracolumbar spine or
incapacitating episodes lasting at least 6 weeks due to
intervertebral disc syndrome.
CONCLUSION OF LAW
The criteria for the assignment of a rating in excess of 40
percent for the service-connected residual disc excision and
laminectomy L5-S1, left have not been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a including
Diagnostic Codes 5235-5243 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107) became law. The regulations implementing the
VCAA provisions have since been published. 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a).
In this case, the Board finds that all relevant facts have
been properly developed in regard to the veteran's claim, and
no further assistance is required in order to comply with
VA's statutory duty to assist him with the development of
facts pertinent to his claim. See 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159.
Specifically, the RO has obtained records of treatment
reported by the veteran and has afforded him comprehensive VA
examinations addressing his claimed disorder. There is no
indication from the record of additional medical treatment
for which the RO has not obtained, or made sufficient efforts
to obtain, corresponding records.
The Board is also satisfied that the RO met VA's duty to
notify the veteran of the evidence necessary to substantiate
his claim in an April 2005 letter. By this letter, the RO
also notified the veteran of exactly which portion of that
evidence was to be provided by him and which portion VA would
attempt to obtain on his behalf. See Quartuccio v. Principi,
16 Vet. App. 183 (2002).
In this letter, the veteran was also advised to submit
additional evidence to the RO, and the Board finds that this
instruction is consistent with the requirement of 38 C.F.R.
§ 3.159(b)(1) that VA request that a claimant provide any
evidence in his or her possession that pertains to a claim.
In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) reaffirmed principles set forth in earlier
Federal Circuit and United States Court of Appeals for
Veterans Claims (Court) cases in regard to the necessity of
both a specific VCAA notification letter and an adjudication
of the claim following that letter. See also Mayfield v.
Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other
grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v.
Nicholson, 20 Vet. App. 537 (2006).
The Mayfield line of decisions reflects that a comprehensive
VCAA letter, as opposed to a patchwork of other post-
decisional documents (e.g., Statements or Supplemental
Statements of the Case), is required to meet VA's
notification requirements. VCAA notification does not
require an analysis of the evidence already contained in the
record or any inadequacies of such evidence, as that would
constitute a preadjudication inconsistent with applicable
law.
The VCAA letter should be sent prior to the appealed rating
decision or, if sent after the rating decision, before a
readjudication of the appeal. A Supplemental Statement of
the Case, when issued following a VCAA notification letter,
satisfies the due process and notification requirements for
an adjudicative decision for these purposes.
Here, the noted VCAA letter was issued prior to the appealed
June 2005 rating decision. Moreover, as indicated, the RO
has taken all necessary steps to both notify the veteran of
the evidence needed to substantiate his claim and assist him
in developing relevant evidence.
The Board is also aware of the considerations of the Court in
Dingess v. Nicholson, 19 Vet. App. 473 (2006), regarding the
need for notification that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded.
In a July 2006 letter, which enclosed with the SOC, the RO
notified the veteran of the evidence necessary to establish
both disability ratings and effective dates in compliance
with these requirements. Id.
In any event, the absence of such notification by VCAA letter
would not prejudicial in this case. The veteran was fully
notified that he was awarded a disability evaluation and an
effective date for that evaluation in the appealed June 2005
rating decision. Id.
Finally, the Board is aware of the Court's recent decision in
Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008).
In Vazquez-Flores, the Court found that at a minimum adequate
VCAA notice requires that a claimant be notified of the
following four items to substantiate a claim for increased
evaluation. First, the claimant must provide, or ask the VA
to obtain, medical or lay evidence demonstrating a worsening
or increase in severity of the disability and the effect that
worsening has on the claimant's employment and daily life.
Second, if the diagnostic code under which the claimant is
rated contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect of that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the VA must provide at least
general notice of that requirement to the claimant.
Third, the claimant must be notified that, should an increase
in disability be found, a disability rating will be
determined by applying relevant diagnostic codes. Fourth,
the notice must also provide examples of the types of medical
and lay evidence that the claimant may submit, or ask the VA
to obtain, that are relevant to establishing entitlement to
increased compensation (e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability).
In this case, the Board is aware that the April 2005 VCAA
letter does not contain the level of specificity set forth in
Vazquez-Flores. However, any such procedural defect does not
constitute prejudicial error in this case because of evidence
of actual knowledge on the part of the veteran. The
notification provided the necessary information such that a
reasonable person could be expected to understand what was
needed to substantiate the claim. See Sanders v. Nicholson,
487 F.3d 881 (Fed. Cir. 2007).
In this regard, the Board is aware of the veteran's
statements in his May 2005 VA examination, November 2005
Notice of Disagreement (NOD) and September 2006 Substantive
Appeal, in which the veteran described the effects of the
service-connected disability on his employability and daily
life. These statements indicate the veteran's awareness that
information about such effects is necessary to substantiate a
claim for a higher evaluation.
The Court in Vazquez-Flores held that actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrates an awareness of
what was necessary to substantiate his or her claim." See
also Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007).
This showing of actual knowledge satisfies the first and
fourth requirements of Vazquez-Flores.
As the veteran makes assertions about the effects of the
service-connected disability on his employability and daily
life, the Board finds that the second requirement of Vazquez-
Flores is not applicable. Accordingly, no further analysis
in this regard is necessary.
Finally, the June 2005 rating decision includes a discussion
of the rating criteria used in this present case. The
criteria were further enumerated in the July 2006 SOC. Thus,
the veteran was made well aware of the necessary requirements
for an increased evaluation pursuant to the applicable
diagnostic code. Such action thus satisfies the third
notification requirement of Vazquez-Flores.
Accordingly, the Board finds that no prejudice to the veteran
will result from an adjudication of his claim in this Board
decision. Rather, remanding this case back to the RO for
further VCAA development would be an essentially redundant
exercise and would result only in additional delay with no
benefit to the veteran. See Bernard v. Brown, 4 Vet. App.
384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426,
430 (1994) (remands which would only result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran are to be avoided).
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities. Ratings
are based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where entitlement to compensation has already been
established, and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. See Francisco v.
Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.
Staged ratings are, however, appropriate for an increased
rating claim when the factual findings show distinct time
periods where the service-connected disability exhibits
symptoms that would warrant different ratings. The relevant
focus for adjudicating an increased rating claim is on the
evidence concerning the state of the disability from the time
period one year before the claim was filed until VA makes a
final decision on the claim. See generally Hart v.
Mansfield, 21 Vet. App. 505 (2007).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. See 38 C.F.R. § 4.7.
In a June 1962 rating decision, the RO granted service
connection for lumbosacral disc syndrome, residuals post
operative herniated nucleus pulposus. The RO assigned a 20
percent evaluation for the disability.
In an August 1965 rating decision, the RO assigned a
temporary 100 percent evaluation for the service-connected
back disorder for a period requiring convalescence after a
surgical procedure. The temporary total rating was assigned
from June 7, 1965 to September 30, 1965, and the 20 percent
rating resumed beginning in October 1965.
In a March 1972 rating decision, the RO assigned a temporary
100 percent evaluation for the service-connected back
disorder for a period requiring convalescence after a
surgical procedure. The temporary total rating was assigned
from February 3, 1972 to March 31, 1972, and the 20 percent
rating resumed beginning in April 1972.
In a February 2004 decision, the RO assigned a temporary 100
percent evaluation for the service-connected back disorder
for a period requiring convalescence after a surgical
procedure. The temporary total rating was assigned from
September 27, 2002 to October 31, 2002. For the period
beginning November 1, 2002, the RO assigned an increased 40
percent evaluation for the service-connected back disorder.
In March 2005, the veteran filed his claim for an increased
evaluation for the service-connected back disorder. In the
now appealed June 2005 rating decision, the RO denied this
claim for increased evaluation for his service-connected back
disability.
From March 2004 to May 2005, the veteran was seen by VA on
multiple occasions with complaints of low back pain. During
his May 2005 VA examination, the examiner noted the history
of the back disorder.
The veteran complained of a chronic dull ache in the lower
back. He reported that his back would become stiff. The
pain and stiffness were aggravated by prolonged sitting or
drives (times in excess of 1 hour). Occasionally, he would
get radicular symptoms in the left leg.
The veteran reported that the intensity of his back stiffness
depended on his level of activity. His back pain was
increased with repetitive bending. He could not lift more
than 20 pounds.
The occupational impairment was not relevant since the
veteran was not working. He was fairly active and was able
to do his own activities of daily living (ADL). He had no
incapacitating episodes of back pain and was not prescribed
bed rest by his physician. His back pain was aggravated by
prolonged sitting, driving, walking and standing.
On examination, the veteran was in no acute distress. There
was a well healed hyperpigmented scar from a previous
laminectomy that was slightly tender. There was mild
tenderness to palpation of the lumbosacral spine. He had no
current muscle spasm.
The veteran had forward flexion from 0 to 30 degrees without
pain and to 60 degrees with pain; backward extension was from
0 to 20 degrees with pain beginning at 20 degrees; lateral
flexion to the right was from 0 to 20 degrees with pain
beginning at 20 degrees; lateral flexion to the left was from
0 to 10 degrees with pain beginning at 10 degrees and
rotation was from 0 to 20 degrees.
The veteran demonstrated stiffness and pain in the entire
range of motion. He had marked stiffness and pain especially
on backward extension. After repeated motion he became very
stiff and any movement was painful.
The veteran had mild sensory deficit along the left lower
extremity, particularly between the knee and ankle in the L5-
S1 dermatome that was manifested by some hypoesthesia or
decreased sensitivity to pin prick. Otherwise, neurological
examination was essentially normal.
The veteran was diagnosed with severe degenerative arthritis
and degenerative disc diseases of the lumbosacral spine,
status post multiple surgeries with persistent pain and
stiffness.
In this case, the service-connected back disability has been
assigned a 40 percent evaluation by the RO under former
Diagnostic Codes 5293. 38 C.F.R. § 4.71a (2002).
As the veteran's claim for an increased evaluation for his
service connected back disability was received in March 2005,
only the revised provisions for evaluating spine disorders
are for application.
Beginning on September 23, 2002, under 38 C.F.R. § 4.71a,
Diagnostic Code 5243 (2007), a 40 percent evaluation is
assigned in cases of incapacitating episodes having a total
duration of at least four weeks but less than six weeks
during the past twelve months.
A 60 percent evaluation contemplates incapacitating episodes
having a total duration of at least six weeks during the past
twelve months.
An incapacitating episode is a period of acute signs and
symptoms due to intervertebral disc syndrome that requires
bed rest prescribed by a physician and treatment by a
physician.
Effective on September 26, 2003, under revised Diagnostic
Codes 5235-5242, a 40 percent evaluation is in order for
forward flexion of the thoracolumbar spine to 30 degrees or
less or favorable ankylosis of the entire thoracolumbar
spine. A 50 percent evaluation is in order for unfavorable
ankylosis of the entire thoracolumbar spine. A 100 percent
evaluation contemplates unfavorable ankylosis of the entire
spine.
The Board has applied the noted criteria to the facts at
hand. Given the May 2005 examination findings (flexion of 0-
30 degrees without pain, extension of 0-20 degrees without
pain, and lateral flexion of 0-20 degrees (right) and 0-10
degrees (left)), an evaluation in excess of 40 percent for
the service-connected back disability is not warranted.
The Board is aware that the veteran had increased pain and
stiffness with repeated movement. Even taking into account
this additional function loss, the service-connected back
disability is not productive of unfavorable ankylosis of the
entire thoracolumbar spine. Thus, assignment of the next
higher rating is not justified. See DeLuca v. Brown, 8 Vet.
App. 202, 204-07 (1996) and 38 C.F.R. §§ 4.40, 4.45, 4.71a,
Diagnostic Code 5237.
With regard to an increased rating under the amended
Diagnostic Code 5243, the Board cannot find that the
veteran's back disability is productive of intervertebral
disc syndrome with incapacitating episodes having a total
duration of at least 6 weeks. Thus a higher evaluation is
not warranted based on incapacitating episodes of
intervertebral disc syndrome.
Therefore, the Board finds the preponderance of the evidence
is against assigning an evaluation in excess of 40 percent
for the service-connected back disability.
ORDER
An increased rating in excess of 40 percent for the service-
connected residual disc excision and laminectomy L5-S1, left
is denied.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs